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Open Access and Legal Scholarship* DOWNLOAD IT WHILE IT’S HOT: OPEN ACCESS AND LEGAL SCHOLARSHIP* by Lawrence B. Solum** This Article analyzes the shift of legal scholarship from the old world of law reviews to today’s world of peer reviews to tomorrow’s world of open access legal blogs. This shift is occurring in three dimensions. First, legal scholarship is moving from the long form (treatises and law review articles) to the short form (very short articles, blog posts, and online collaborations). Second, a regime of exclusive rights is giving way to a regime of open access. Third, intermediaries (law school editorial boards, peer-reviewed journals) are being supplemented by disintermediated forms (papers on the Internet, blogs). Blogs and internet conversations between academics are expanding interdisciplinary legal scholarship and increasing the avenues of communication among legal scholars, practitioners and a wide array of interested laypersons worldwide. I. INTRODUCTION: A BLOGGER’S TALE..............................................842 II. THE OLD WORLD: LONG FORM, EXCLUSIVE RIGHTS, AND INTERMEDIARIES..................................................................................847 A. The Long Form..................................................................................847 B. Exclusive Rights.................................................................................848 C. Intermediaries....................................................................................850 1. Source Intermediaries .................................................................850 a. The Law Reviews and Peer-Reviewed Journals....................850 b. Legal and Academic Presses ................................................852 2. Search Intermediaries .................................................................852 * © 2006 by the Author. Permission is hereby granted to duplicate this paper for scholarly or teaching purposes, including permission to reproduce multiple copies or post on the Internet for classroom use and to quote extended passages in scholarly work, subject only to the requirement that this copyright notice, the title of the Article, and the name of the author be prominently included in the copy or extended excerpt. Permission is hereby granted to use short excerpts (500 words or less) with an appropriate citation and without inclusion of a copyright notice. In the event of the death or permanent incapacity of the author, all claims to copyright in the work are relinquished and the work is dedicated to the public domain in perpetuity. ** John E. Cribbet Professor of Law, University of Illinois College of Law. I owe special thanks to Larry Ribstein with whom I have had many illuminating conversations about blogging. See Larry E. Ribstein, Initial Reflections on the Law and Economics of Blogging (Univ. of Ill. Coll. of Law, Law & Econ. Working Paper No. 25, 2005), available at http://law.bepress.com/uiuclwps/papers/art25/. 841 842 LEWIS & CLARK LAW REVIEW [Vol. 10:4 a. Card Catalogs and the Index to Legal Periodicals...............853 b. Westlaw and Lexis-Nexis ......................................................853 III. THE NEW WORLD: SHORT FORM, OPEN ACCESS, AND DISINTERMEDIATION ..........................................................................854 A. .Short Form....................................................................................854 B. Open Access.......................................................................................856 C. Disintermediation..............................................................................857 IV. THE ECOLOGY OF THE LEGAL ACADEMY .....................................859 A. The Economics of Legal Scholarship ................................................859 1. Supply Side: Intrinsic and Extrinsic Rewards.............................859 2. Demand Side: Source Costs and Search Costs ...........................860 B. The Role of Intermediaries ................................................................861 1. Screening.....................................................................................861 2. Certification ................................................................................861 3. Dissemination..............................................................................862 4. Targeting.....................................................................................862 5. Feedback .....................................................................................862 C. Dissemination....................................................................................863 1. Dissemination One: The Globalization of the Legal Academy ...863 2. Dissemination Two: Legal Scholarship Wants to be Free ..........863 3. Dissemination Three: Disintermediation and Immediacy...........864 4. Dissemination Four: An Objection and an Answer: “I Only Want to be Read by the ‘Right People’” .....................................865 V. CONCLUSION: A SCHOLAR’S TALE ..................................................865 I. INTRODUCTION: A BLOGGER’S TALE In September of 2002, I started a blog.1 On a whim. I barely knew what a blog was, and I certainly didn’t know what to do with one. Like a lot of bloggers, at first I didn’t even know that the word “blog” was short for web log. And I had no clue as to what a web log was—beyond the obvious, that is was some kind of “log” on the world wide “web.” To be candid, I had started to notice the word “blog” popping up in “cool” venues, and I hated the idea that I was already “behind the curve.” So, I looked at a few blogs. I don’t remember which ones, but I began to understand that a blog consisted of “posts” or entries that formed a kind of online diary or journal. I got the sense that blogs could be about almost anything—serious, frivolous, political, cultural, personal, techie. Whatever. I posted some posts, got busy with other things, and let the blog lie dormant until January of 2003, when I started to post again on a regular basis. I called the blog “Legal Theory Blog.” I knew that other law professors had blogs—I think that I knew about the Volokh Conspiracy,2 a group blog organized by Eugene Volokh of the University of California at Los Angeles 1 See Lawrence B. Solum, Legal Theory Blog, http://lsolum.blogspot.com/archives/ 2002_09_01_lsolum_archive.html (Sept. 1, 2002). 2 See The Volokh Conspiracy, http://volokh.com/. 2006] OPEN ACCESS AND LEGAL SCHOLARSHIP 843 Law School and I might have been aware of “Instapundit,”3 a solo effort by Glenn Reynolds of the University of Tennessee Law School. I had a certain idea about what the blog might accomplish, based on something else that I was just beginning to use extensively as a research tool—the Social Science Research Network (SSRN),4 a website and service that provides access on the Internet to scholarly papers in a variety of disciplines including law. I wanted to do a blog with a focus on “legal theory” broadly conceived as encompassing a variety of interdisciplinary approaches to normative and positive legal scholarship. What a geek. I thought to myself: “I’m reading these papers on SSRN in draft. I could blog about some of the papers that I read.” It seemed to me that there might be half a dozen potential readers, who would be interested in my postings about legal theory papers. Secretly, I hoped that if the blog were a giant success it might attract a few dozen readers on a semi-regular basis. And I said to myself, “What the heck, if no one reads it, I’ll just stop doing it.” As I recall, my expectations were rather low: I believed that it was “too late” for entry into the blogging market—which was already dominated by a few “big blogs.” Were it not for some positive feedback, I’m almost sure my career as a blogger would have ended a few weeks into my second foray. At first the feedback came in tiny dribs and drabs. I can actually name the two people who are most responsible for the continued existence of “Legal Theory Blog.” Chris Bertram and Nathan Oman had blogs of their own at the time. Chris Bertram is a philosopher at the University of Bristol in the United Kingdom—he had a blog called “Junius” and he later became a founding member of a widely read, mostly academic group blog called “Crooked Timber.” I don’t remember exactly what Bertram said or why, but whatever it was, it made me think that 3 See Instapundit.com, http://instapundit.com/. 4 See Social Science Research Network (SSRN) Home Page, http://ssrn.com/. 844 LEWIS & CLARK LAW REVIEW [Vol. 10:4 what I was doing might be appreciated by thoughtful readers. Nate Oman recently became a law professor at the College of William and Mary in Virginia. At the time, Oman was a first year law student at Harvard with a blog called “A Good Oman.” And like Bertram, Oman provided thoughtful and appreciative feedback. Bertram and Oman opened my eyes to the blogosphere as a distinctive form of social and intellectual interaction—a space for communicating about serious ideas. Thanks guys. And then something else happened. I read an op/ed in the New York Times about a judicial nominee. The editorial focused on a case involving the application of the doctrine of res judicata (claim preclusion) to a case involving the tort of spoliation (destruction) of evidence. Well, I’ve written a treatise with a chapter on claim preclusion5 and another treatise with a chapter on the spoliation tort.6 So I read the case. And it struck me that the editorial was a hatchet job or incompetent or both. So I blogged about the
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